During the latter part of last year, an article appeared in a local newspaper stating that parents could be prosecuted for disciplining their children in terms of the proposed amendment to the Children’s Act 2005. In effect, a parent would have been obliged to respect the child’s right to physical integrity as conferred on such child by the Constitution of South Africa. In effect, if the legislation had been passed, it would have resulted in the complete withdrawal of the right of any person including parents to inflict corporal punishment on children.
The Constitutional Court had decided prior to this that even schools, run by religious institutions, could not inflict corporal punishment on such children even though the right to do so was prescribed in the Bible.
This particular aspect of the proposed amendment to the Children’s Act 2005 did not become law as it appears to have encountered considerable opposition in its path to becoming final legislation. That notwithstanding, it is important that parents bear in mind that the common law is South Africa does make provision where discipline or chastisement of their children is concerned. There exists the right for parents to chastise their children by inflicting reasonable and moderate corporal punishment. This right however is not without limit and the imposition of such corporal punishment has to both be reasonable and moderate. This objective approach, having regard to all the relevant circumstances surrounding such discipline, provides at least a minimum protection against the possible physical abuse and maltreatment of children. So although parents have a measure of discretion in determining the nature of the corporal punishment, the courts do have the discretion to determine if such punishment was indeed reasonable and lawful, and if parents do exceed their authority in terms of chastising their children, they could be held liable under both criminal and civil law. In other words, if the punishment administered is, for example, for gratification of passion or rage, or if it is immoderate, or excessive in nature or degree, then the administration of that corporal punishment becomes unlawful and subject to both criminal and civil sanction. Therefore corporal punishment is not to be exercised in an arbitrary and/or capacious manner. It may only be exercised on just and reasonable grounds namely the appropriate disciplinary punishment must be reasonable in all the circumstances, and the parent must have acted both reasonably and moderately.